Florida’s Direct-Support Organizations Sidestep Public Records Laws

The University of Tennessee spent $270,000 on hotels, meals and transportation for its football team during home games in 2017. The University of Kentucky spent more than $334,183.

How much did the University of Florida spend?

It’s a secret.

Florida is one of the few states that exempts university groups like UF’s athletic organization from public records laws. This protection is said to ensure the privacy of the organizations, but some call it an overbroad restriction that gives more power to the already powerful university system.

UF’s athletic program, the University Athletic Association, is a direct-support organization. The classification identifies the group as a private, incorporated business and separates it from the university.

The status of direct-support organizations is a gray area in most states. They’re private businesses separate from universities, but they still enjoy benefits from schools like logos and property, making their relationship to public records laws unclear.

In Florida, the right of access to these groups is black and white: They are exempt.

Director of the Brechner Center for Freedom of Information Frank LoMonte said he thinks the entire structure of direct-support organizations is questionable and possibly dangerous.

Universities act as state agencies, he said, which force their public records to be accessible. LoMonte said there’s no justification for allowing direct-support organizations, which are core functions of these state agencies, to become off-limits to the public because of a change in paperwork.

“You shouldn’t be able to incorporate your way out of accountability and the public records act,” he said.

University organizations becoming incorporated is nothing new. The oldest direct-support organization is Florida State University’s Alumni Association, which started in 1909.

A Florida statute dating back to 1975 exempts university direct-support organizations from disclosing all their public records except for an annual auditor’s report.

But because some direct-support organizations in Florida, like the UAA, are central to the universities’ functions, they act partly as university groups and partly as private businesses.

“I think they need to become completely separate and stop using university resources,” LoMonte said, “or they need to embrace that they are a government agency, and that includes the open-records law.”

UF spokesperson Steve Orlando wrote in an email that direct-support organizations allow universities to execute tasks public entities otherwise cannot. The privacy of organizations like the UF Foundation, for instance, allows anonymous donors to remain anonymous, he said.

“Private gifts often provide the university with resources it might not otherwise have through other funding sources, such as public funding, giving the university greater ability to achieve excellence in pursuit of its educational mission,” he said.

After a public records request for UAA’s spending on home football games was denied, several UAA spokespeople declined interview requests.

University of Central Florida’s athletic association, also a direct-support organization, made news in 2008 after student athlete Ereck Plancher collapsed and died during a football practice.

A 2011 jury awarded Plancher’s family $10 million, but the athletic association appealed and argued it should be treated as a state agency instead of a private organization. Florida’s Supreme Court agreed, and the classification limited the amount UCFAA could pay Plancher’s family to $200,000.

Barbara Petersen, president of Florida’s First Amendment Foundation, said direct-support organizations like UAA and UCFAA that run university departments are a perversion of what the organizations are supposed to be.

“DSOs are not intended to run school programs or university programs,” Petersen said. “They’re intended to raise money to support them.”

“Universities are dependent on the DSO, and the DSOs are dependent on anonymity and secrecy.”

Besides its handling of direct-support organizations, Florida has some of the most open public records laws in the country, LoMonte said. Florida is one of the few states that provides attorney’s fees in lawsuits, he said, which makes the state stand out.

“Most people would tell you that we are at or near the top in the accessibility of records,” he said. “It’s peculiar that of all states, Florida would be a ‘leader’ in the secrecy of its public universities.”

No states have followed in Florida’s footsteps yet, but two with similar public records laws are Pennsylvania and Georgia. Four Pennsylvania universities, including Penn State University, are completely exempt from disclosing public records.

And in 2016, University of Georgia’s head football coach pushed for a special exemption that allows athletic departments in Georgia public schools up to 90 business days to respond to open records requests.

This marks a shift in how university organizations, specifically athletics, are treated.

There are some instances where direct-support organizations require privacy to be competitive. For instance, releasing records of the student athletes universities try to recruit or of a department’s fundraising practices could increase competition between schools.

Petersen said the only way these exemptions can become more tailored to the public’s need of transparency is through legislation, which she said is unlikely.

First Amendment Foundation supported a 2016 bill that requested all university direct-support organization records be subject to disclosure, but the bill quickly died.

“Exemptions, once they’re passed, it’s almost as if they’re set in cement. They’re very hard to change,” Petersen said. “Even though we supported (the 2016) bill, I didn’t have any expectation that it would pass.”

UF, FSU and UCF are the only Florida universities that have athletic departments that are direct-support organizations. This is a trend LoMonte said he hopes doesn’t become a nation-wide norm.

“When one university gets some competitive advantage, everybody else runs to their legislator and wants to be next,” LoMonte said. “It does worry me that other major programs, especially athletic powers, are going to want the same treatment.”

Petersen’s worries go beyond university athletic programs.

“Today it’s the athletic department, what if tomorrow it’s the economics department or the math department?” she asked. “That’s the concern.”